SUPREME COURT OF NOVA SCOTIA Citation: Toronto-Dominion Bank v. Dickison Estate, 2015 NSSC 377

Transcription

1 SUPREME COURT OF NOVA SCOTIA Citation: Toronto-Dominion Bank v. Dickison Estate, 2015 NSSC 377 Date: Docket: Hfx No Registry: Halifax Between: THE TORONTO-DOMINION BANK, one of the chartered Banks of Canada Plaintiff v. BDO CANADA LIMITED/BDO CANADA LIMITEE as Trustee in bankruptcy for the Estate of THOMAS A. DICKISON and BDO CANADA LIMITED/BDO CANADA LIMITEE as Trustee in bankruptcy for the estate of PAULINE DICKISON Defendants LIBRARY HEADING Judge: The Honourable Justice Suzanne M. Hood Heard: December 1, 2015, in Halifax, Nova Scotia Oral Decision: December 4, 2015 Written Release of Oral Decision: Subject: Summary: Issues: Result: January 18, 2016 Foreclosure sale: setting aside. The Toronto Dominion Bank is seeking an order to set aside the foreclosure sale. Bank s representative at sale believed her bid was the highest but property knocked down to another bidder. Sheriff would not re-open the sale although Bank was prepared to bid more. (1) Should the foreclosure sale be set aside? Discretion not exercised to set aside the sale. Authorities canvassed. Principles for setting aside.

2 THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.

3 Between: SUPREME COURT OF NOVA SCOTIA Citation: Toronto-Dominion Bank v. Dickison Estate, 2015 NSSC 377 Date: Docket: Hfx No Registry: Halifax THE TORONTO-DOMINION BANK, one of the chartered Banks of Canada v. Plaintiff BDO CANADA LIMITED/BDO CANADA LIMITEE as Trustee in bankruptcy for the Estate of THOMAS A. DICKISON and BDO CANADA LIMITED/BDO CANADA LIMITEE as Trustee in bankruptcy for the estate of PAULINE DICKISON Defendants Judge: Heard: The Honourable Justice Suzanne M. Hood December 1, 2015, in Halifax, Nova Scotia Oral Decision: December 4, 2015 Written Release of Oral Decision: Counsel: January 18, 2016 Andrew Rankin, for the Plaintiff Stephen Kingston, for Nova Scotia Limited

4 Page 2 By the Court: Introduction [1] The Toronto Dominion Bank is seeking an order to set aside the foreclosure sale. Issue [2] Should the sale be set aside. Facts [3] The bank foreclosed on a property in Martin s River on April 20, The Sheriff s sale was held on June 11, 2015, in Bridgewater. [4] The Toronto Dominion Bank was represented at the sale by Sinead Russell of Power, Dempsey, Leefe & Reddy in Bridgewater. Two other bidders were present. Michael Simms for the numbered company and Michele Hue. The sale was conducted by two Deputy Sheriffs: Deputy Sheriff Judy West conducted the sale; Deputy Sheriff Jeremy Swinamer assisted her.

5 Page 3 [5] The Foreclosure Order had settled the amount owing at $278,027.60, and Ms. Russell had instructions from TD s counsel on the foreclosure to bid up to $215,000, on the basis of a $205,000 appraisal. The mortgagors are bankrupt. [6] The bidding began with Ms. Russell on behalf of TD bidding the minimum bid. The bidding continued in $5,000 increments until it reached $80,000. It is uncontested that Deputy Sheriff West knocked it down at $80,000. [7] In her affidavit, Ms. Russell says she believes she had the last bid at $80,000, but says she was told by Deputy Sheriff West that the numbered company was the highest bidder. She says she then told the Deputy Sheriff that she had authorization to bid higher, and asked for the bidding to be reopened. Deputy Sheriff West refused. [8] Ms. Russell said the bidding process went very quickly, she said two to three minutes, and she was making notes to keep track of the bidding. She said she did not recall Deputy Sheriff West saying who had the $80,000 bid. [9] There are also affidavits on file from the two Deputy Sheriffs, as well as Mr. Simms, the agent for the successful bidder, the numbered company, and Ms. Hue, the other unsuccessful bidder.

6 Page 4 [10] Deputy Sheriff West said in her affidavit that when the bidding reached $80,000, she waited two minutes or so for additional bids and then announced going once, waited a few seconds, then said going twice, again waited a few seconds, and then said it was sold to Mr. Simms for $80,000. [11] In her affidavit, she said Ms. Russell then said, I wasn t paying attention, but the other two bidders agreed the property was sold. She then told Ms. Russell, according to her affidavit, that she could not re-open the bidding because the property was sold. [12] Her affidavit evidence was confirmed by Deputy Sheriff Swinamer in his affidavit. He added that Ms. Russell said she wasn t paying attention, was making notes, thought $80,000 was her bid, and said she added, I need to bid again. [13] In his affidavit, Mr. Simms says after Ms. Russell made the opening minimum bid, he made the next one and the other bidder, now known to be Ms. Hue, raised his bid by $5,000. He said the bidding continued in $5,000 increments with bids by Ms. Hue, Ms. Russell and himself. He said after the bidding reached $75,000, he bid $80,000. [14] He said thereafter, there was a pause of 20 to 30 seconds, after which Deputy Sheriff West asked Deputy Sheriff Swinamer to restate the current bid and

7 Page 5 he said $80,000. Mr. Simms said that after a pause, Deputy Sheriff West said, going once at $80,000 ; after ten seconds, said going twice at $80,000 and, after a ten second pause, said going a third time at $80,000. She then said sold for $80,000. [15] Mr. Simms said Ms. Russell was seated ahead of him and he could see her head was down and it appeared she was taking notes. He said he could not hear the discussion between the deputies and Ms. Russell after Deputy Sheriff West said the property was sold. He said he heard Ms. Russell say, Wait a minute, we have to keep going and I have instructions to bid higher. Deputy Sheriff West said the property was sold, but Ms. Russell said the deputy had to re-open the auction, but Deputy Sheriff West said she could not. He said he then saw Ms. Russell gather her papers and, as he put it, left the courtroom abruptly. [16] Mr. Simms said it was the first time he had attended a Sheriff s sale as a bidder, but he had no trouble keeping track of bids. He said he thought the sale was conducted at, an orderly and measured pace, and was not rushed. He said he did not think there was any confusion with respect to the sale until after the announcement that the property was sold.

8 Page 6 [17] The other bidder present was Michele Hue from Vancouver. She came from British Columbia to the auction and attended with her uncle. She said she too had not attended a foreclosure sale previously. In her affidavit, she said the bank lawyer, Ms. Russell, placed the opening minimum bid. Contrary to the affidavit of Mr. Simms, she says she made the next bid but she agreed that the three of them continued to bid in $5,000 increments. [18] She said she had predetermined her maximum bid to be $80,000 and she bid $75,000, following which Mr. Simms made an $80,000 bid. She then said she gestured to the Deputy Sheriff that she would not bid anymore. Thereafter she said the Deputy Sheriff paused, then announced going once at $80,000.00, followed by a further pause; then, going twice at $80,000.00, followed by a further pause and going a third and final time at $80, After a final pause, she then said, sold for $80, [19] Ms. Hue said Ms. Russell then looked up from her notes, asked the amount of the last bid, was told $80,000 and said she wanted to bid $80,000 but Deputy Sheriff West said the property was sold. She said Ms. Russell then said she had made an error and asked for the bidding to be reopened, which the Deputy Sheriff refused to do. She then said Ms. Russell, got up and left the room quickly.

9 Page 7 [20] She said she thought the Deputy Sheriff handled the sale, both fairly and professionally, that the bidding was not rushed and she had no problem keeping track of whose bid was highest. She said the Deputy Sheriff clearly stated the amount of the bid and going once, twice and a third time, and as a result she said the Deputy Sheriff gave everyone an opportunity to make a higher bid. [21] I find as a fact based on the affidavit evidence that Deputy Sheriff West did not say who was the highest bidder before knocking the property down at $80,000. I also find as a fact that the sale was not rushed and everyone had an opportunity to bid. [22] The question for the court, as put by the bank, is whether the sale was conducted to get the best price obtainable. There is no issue between the bank and the numbered company that the Court does have the discretion to set aside a foreclosure sale. The question is whether it should exercise its discretion to do so in this case. The Law [23] A number of authorities were cited with respect to the setting aside of foreclosure sales. In Pew v. Zinck, [1953] S.C.J. No. 12, the Supreme Court of

10 Page 8 Canada dealt with a foreclosure sale in Nova Scotia and the grounds on which the Court could refuse to confirm that sale. Justice Rand said at p.340: On what grounds, then, may the court refuse to confirm? Although it would be impossible to enumerate them all, fraud, mistake, misconduct by the purchaser, error or default in the proceedings are well established. But the controlling fact to which these grounds give emphasis, is that the purchase can be defeated only by juridical action. [24] That decision was quoted by Justice Hallett (as he then was) in Atlantic Trust Co. v. H. & E. General Stores Ltd., [1977] N.S.J. No. 28 (N.S.S.C.T.D.). In that case, the solicitor for the plaintiff trust company did not attend the sale on time because his vehicle broke down en route. This was, of course, before the days of cellular telephones and he was not able to contact anyone. Justice Hallett said at para. 6 of that decision: It is to be noted that Rand, J., did not try to enumerate all the grounds upon which sales may be set aside. As a general rule, inadequacy of price is not a ground to set aside a judicial sale. [25] He continued in that paragraph to refer to the Pew decision from the Supreme Court of Canada, where Justice Locke had quoted from an old English case, Shaw v. Bunny (1864), 2. De G.J. & S. 468; 46 E.R. 456, where the phrase special circumstances was used. Justice Hallett continued in para. 7: However, it is to be noted that the Master of the Rolls in Shaw v. Bunny made specific reference to the absence of special circumstances. In my opinion, there were, in the case before me, special circumstances which must be looked at in

11 Page 9 considering this application to set aside the sale. Specifically, the special circumstances were as follows: 1. The property was purchased by the second mortgagee for $1, which is obviously a ludicrous price considering that the property had a value of at least $13, and possibly $19, The second mortgagee knew that the first mortgagee intended to attend and bid the property up to $12, The first mortgagee s failure to attend was due to circumstances beyond the control of the first mortgagee s solicitor. [26] Justice Hallett also referred to American authorities. In Northland Pine Co. v. Northern Insulating Co., 145 Minn. 395, he quoted from it at para. 10: A judicial sale of property, unless made for such a grossly inadequate price as to raise an inference of unfairness, fraud or mistake, will not be set aside. The inadequacy must be so great as to shock the conscience. [27] At para. 14, Justice Hallett concluded: On the facts before me, I find that the sale price as stated was shockingly inadequate and should likely be set aside on that ground alone. However, coupled with the other circumstances I have referred to, there are adequate grounds to exercise my discretion and set the sale aside. [28] He then said in paras. 19 and 20: 19 There was no opportunity for the solicitor to remedy the difficulty in which he found himself, being stranded on a highway without a telephone. As a consequence, the same principles as set forth in Pew v. Zinck should not apply, even though it is desirable that purchasers at judicial sales should be able to assume that if the sale is conducted in accordance with the Court order, they have acquired title to the property and should not have to concern themselves that the sale may be set aside. 20 It is only where there are special circumstances that the Court s discretion should be exercised and I am satisfied that this is a case where such discretion should be exercised and the sale set aside.

12 Page 10 [29] In Reyes v. Saranic, 1978 CarswellNS 95 (N.S.C.A.), Justice Hart, writing for the court, clearly set out the role of the Sheriff in conducting sales of land by auction. Although the sale of land in that case was a sale of land under execution, the principles apply equally to the role of the Sheriff on any judicial sale, including a foreclosure sale. Justice Hart said in para. 35: In my opinion the Sheriff in conducting a sale of land under execution is an officer of the Court. [30] He then continued in para. 36: When conducting a sale of land under execution the Sheriff also owes a duty to the judgment debtor and to the members of the public bidding at the sale. His duty to the judgment debtor is similar to his duty to the judgment creditor in that he must see that the sale is properly advertised and the lands sold to the best bidder. His duty to the public is to see that the sale is properly conducted so that all bidders have an equal opportunity to compete for the property. [31] Justice Hallett had occasion to deal with another foreclosure sale in Nova Scotia Savings & Loan Co. v. Hill, [1981] N.S.J. No. 400 (N.S.S.C.T.D.). The issue there was the actual conduct of the sale. In the affidavit of the solicitor for Nova Scotia Savings & Loan, William Dyer, he described the procedure the Sheriff followed (quoted at para. 2): 13. THAT to the best of my recollection, the Sheriff did not once during the course of the sale indicate that the phrase any other bids? (or words to that effect) was being employed by her for a first, second, third, last, or final time, or otherwise, or that there was any significance whatsoever to her use of that phrase.

13 14. THAT the overwhelming impression of the Sheriff s conduct of this sale over a period of twenty minutes or longer was that she was not attaching any special significance to repetition of the phrase and that she would in time indicate to those present when she intended to knock-down the property at a price and conclude a sale. 15. THAT in due course Mr. Earl Baker made a bid of $26, after which the Sheriff said any other bids?, or words to that effect, three times, and hearing no response, declared the property sold to Mr. Baker. [32] Justice Hallett referred to Pew, where he said in para. 24: Page 11 As stated in Pew v. Zinck et al., an error in the proceedings is a recognized ground for setting aside a judicial sale. The issue in this case is whether the Sheriff s conduct of the sale and, in particular, her choice of language in knocking the property down to Mr. Baker was an error in the proceedings that would justify setting the sale aside. There are competing interests in this situation. On the one hand, the desirability of obtaining the best price for the property foreclosed, which was not achieved in this sale as the Bank was prepared to bid $10, over and above the price at which the property was in fact sold to Mr. Baker. On the other hand, there is the importance of Sheriff s sales being final as it would be a very unsatisfactory situation if sales were constantly being opened up. [33] He concluded in para. 25 that the Sheriff s conduct, constituted failure to exercise her duty in a reasonable manner. He explained in that paragraph, It is reasonable that those attending at the sale would conclude that she was asking for further bids. It was also, in my opinion, reasonable for them to conclude that she was not about to knock the property down to Mr. Baker for $26, [34] He addressed the issue of price in para. 26, where he said: There was at least one bidder present ready, willing and able to bid up to $36, In my opinion, the Sheriff did not indicate in an acceptable manner to the bidders that she was about to knock the property down to Mr. Baker for $26, and, as a consequence, the best price was not obtained. The Court has an interest in seeing that the property is sold for the best price obtainable; this is

14 implicit in Civil Procedure Rule 47.16(1). Obtaining the best price is important to both the mortgagor and the subsequent encumbrancers. [35] Later, in para. 34, Justice Hallett said: Page 12 That is not to say that simply because a sale of a mortgaged property pursuant to a foreclosure order brings less than market value, it will be set aside. Indeed, inadequacy of price is not a ground to set aside a sale, but when the inadequate sale price is brought about by the unreasonable manner in which the property being sold was knocked down by the person authorized by the court order to conduct the sale, it cannot be approved and must be set aside. In that case, Justice Hallett did set the sale aside. [36] In Royal Bank of Canada v. Bonnar, 2007 NSSC 377, Chief Justice Kennedy refused to set aside a foreclosure sale where the bank s solicitor forgot to attend the sale. He had been instructed by the bank s lawyer on the foreclosure action to bid up to $135,000 and no more. Chief Justice Kennedy referred to Atlantic Trust, in which, as noted above, Justice Hallett quoted from Pew v. Zinck. Chief Justice Kennedy also referred to Nova Scotia Savings & Loan Co. v. Hill. [37] The Bank in Bonnar said the Sheriff had the authority to postpone the sale but did not do so when he had reason to believe someone would be present representing the bank. The Bank said in that case that the Sheriff did not conduct the sale in such a way as to get the best price obtainable. The Bank in that case also said the reason for the bank s solicitor not attending was reasonable, since he

15 saw a coyote in his yard and had concerns for his family s safety such that his failure to attend the sale was both accidental and unintentional. Page 13 [38] The Bank further said that the sale price of $70,000 was unconscionable relative to the value of the property. The purchaser at the sale, the second mortgagee, Canada Trust, said there were no special circumstances in that case and referred to Justice Hallett s comments in Atlantic Trust that purchasers at foreclosure sales should not have to worry that the sale may be set aside. [39] Chief Justice Kennedy concluded that there was nothing wrong with the Sheriff s action in continuing the foreclosure sale, nor did he find there were special circumstances. He said in para. 49: Bottom line, I do not find special circumstances that justify the setting aside of this foreclosure sale. I share Justice Hallett s interest in the integrity of the sheriff sale process. The interest we have in people knowing, expecting, that at sales conducted according to court order, when they are in attendance and successfully bid, will allow them to acquire title to that property. I agree that in special circumstances a sale can and indeed in some instances, should be set aside, but these circumstances in my mind will be exceptional. [40] He also dealt with the issue of sale price, saying in para. 51: However, I agree with Canada Trust that, unlike the situation in Atlantic Trust Co. v. H. & E. General Stores, supra, the price paid herein was not either ludicrous or shockingly inadequate. I am mindful that otherwise, as a general rule, inadequacy of price is not a ground to set aside a judicial sale.

16 Page 14 [41] The final authority cited to me is the decision of Justice Wood in inova Credit Union v. Giamac Inc., 2012 NSSC 431. In that case, the principal of Giamac, Gerald Giovannetti, was the agent of a local businessman, Fred Smithers, and was authorized to bid at the sale. However, when his bid was accepted and the property knocked down to Mr. Smithers, Mr. Giovannetti did not have the required ten percent deposit. After some discussion among some of the people present (there were four bidders in addition to the agent for Mr. Smithers), the Sheriff at 12:37 p.m. gave Mr. Giovannetti until 1:00 p.m. to obtain the deposit. He understood this to be the local practice. When Mr. Giovannetti had not returned by 1:00 p.m., the Sheriff refused to wait longer and reopened the sale and sold it for $1,000 less than the $501,000 bid on behalf of Mr. Smithers. [42] A further wrinkle was that the bank draft of the successful bidder was made out to the plaintiff company but, since there were two of its representatives present, they endorsed it so it could be deposited. However, when the Sheriff gave it to court administration, he was told it would be, preferable to have the draft replaced with one payable to the Sheriff s office in trust. A replacement was provided the next day, while the Sheriff retained the original. [43] At para. 18, Justice Wood set out the procedure for Sheriff s sales, saying:

17 The procedure for foreclosure sales is governed by the Civil Procedure Rules and, in particular, Practice Memorandum No 1, which incorporates the standard procedure for sheriff s sales. According to s. 2(b) of that procedure, the terms of payment are as follows: The purchaser at the time of sale shall pay to the sheriff a deposit of ten percent of the amount of the purchase price by cash, bank draft, solicitor s trust cheque, or certified cheque. Page 15 [44] In the years since the earlier decisions, when there was some variation in the practice of Sheriffs conducting Sheriff s sales, the Nova Scotia Department of Justice had developed policies and procedures for Sheriffs, including with respect to Sheriff s sales. They were quoted by Justice Wood at para. 20 (I quote only part): The Sheriff or his/her designate is to have the successful bidder sign the Acknowledgement (sic) of Purchase immediately following the sale, and is to: (a) collect 10% of the purchase price at the time of the sale, as per the terms under the Notice of Public Auction. [45] However, as Justice Wood noted in para. 21: There is nothing in the Civil Procedure Rules, the order of foreclosure, sale, and possession, or the policies and procedures for sheriff services which direct what is to happen if the highest bidder at the sale does not have the required deposit at the time their bid is accepted. Jurisprudence indicates that, in these circumstances, the sheriff has a discretion to deal with the issue, provided they act reasonably and the procedure chosen does not conflict with the court s order or the Civil Procedure Rules.

18 Page 16 [46] Justice Wood then canvassed the authorities to which I have referred above, including Pew v. Zinck, Atlantic Trust, and Nova Scotia Savings & Loan v. Hill. In addition he referred to McInnes Cooper & Robertson v. Sea Star Developments Ltd. [1997] N.S.J. No. 295 (N.S.S.C.), where the issue was that the deposit was drawn on the solicitor s general account, contrary to the requirement that it be paid by cash, certified cheque or solicitor s trust cheque. In that case, the Sheriff and the solicitor travelled together to the bank where the cheque was certified at 12:45 p.m., approximately 20 minutes after the property was knocked down to the purchaser by the Sheriff. [47] Justice Wood quoted from paras. 56 and 61 of the decision at para. 27 of his decision: The Court described the role of the Sheriff in a judicial sale at para. 56: 56 The Sheriff, as an officer of the Court, cannot disregard a Rule, Court order, practice memorandum or standardized procedure. A Sheriff cannot follow his own or any local procedure in preference to that which he is directed to follow by the Rules or by the Court. If he does so, he opens himself and, possibly, his employer, the Province of Nova Scotia, to potential personal liability. However, the standardized procedure is not a complete code. It does not purport to be such. Where a local practice is not in contravention of the standard procedure, there is no reason why it should not and cannot be used to supplement the standard procedure. It will be noted that the Standard Procedure for Sheriffs Sales by Public Auction - is further headed Instructions to the Sheriff. The Sheriff is required to treat those instructions as mandatory. However, he may supplement that standard procedure by local practice which is not inconsistent with the standard procedure, where the circumstances are appropriate and the supplementary practice is reasonable.

19 Page 17 [48] Justice Wood continued to say at para. 28: The conclusion of the Court was that the Sheriff s conduct was reasonable and the sale should not be set aside. The Court s rationale is summarized at paras. 61 and 62: 61 In the circumstances which existed in the present fact situation, it was not possible for payment to be effected to the Sheriff at the moment he knocked down the property to the purchaser. As an interim measure, he accepted a cheque in an appropriate amount drawn upon a law firm s general account and requested the Solicitor to arrange for it to be certified. It might have been better if, instead, the Solicitor for the purchaser had given to the Sheriff the purchaser s certified cheque. But it makes no different in the end because the cheque which was handed over was retained continuously by the Sheriff until it was made to conform to the requirement of a certified cheque within a period of approximately 20 minutes after the Sheriff knocked down the property to the purchaser. That is when the Sheriff demanded payment. I consider it to be within a reasonable interval after the Sheriff knocked down the property. [49] Justice Wood then considered the circumstances of the sale before him and the fact that the Sheriff had discretion in deciding what should be done with respect to the purchaser without a deposit. He considered that in all the circumstances the actions of the Sheriff were not unreasonable. He concluded in para.41: In my view, there are no special circumstances here as that term has been used by the courts. The integrity of the sale process is important and should only be set aside in clear cases where the interest of fairness and justice demand. This is not one of those cases. [50] From the decided cases, I extract the following principles with respect to setting aside foreclosure sales:

20 Page The Court has a discretion to set aside foreclosure sales but it should be used sparingly. 2. The party seeking to have a foreclosure sale set aside bears the burden of establishing it should be set aside. 3. Each case must be considered on its own facts to determine if there are special circumstances which require that the sale be set aside. A lawyer s inadvertence is not a special circumstance. 4. Inadequacy of price is, of itself, not sufficient reason to set aside a sale in the absence of an inference of unfairness, fraud, or mistake, or a price that shocks the conscience. 5. The integrity of the sale process is important. A successful bidder should be able to rely on the sale being final. 6. With respect to the Sheriff s conduct of the sale: a. the Sheriff is an officer of the Court; b. the Sheriff has an obligation to get the best price obtainable;

21 Page 19 c. the Sheriff must conduct the sale to ensure everyone who wishes to has an opportunity to bid; d. the Sheriff must ensure the property is sold to the highest bidder; e. before knocking the property down, the Sheriff must indicate Going once, going twice, going a third time (or words to similar effect) and allow sufficient time between each announcement so there is time for any additional bid to be made; f. beyond the specific requirements set out in the Civil Procedure Rules, the Foreclosure Order, the Practice Memorandum and the Sheriff s policies, the Sheriff has discretion in the conduct of the sale, which discretion must be exercised reasonably. [51] Applying these principles to the facts in this case, I conclude the Deputy Sheriff gave everyone an opportunity to bid and, in fact, all three potential bidders did bid. The Deputy Sheriff indicated the amount of the final bid and provided an opportunity for any additional bids by saying, Going once, going twice, going a third time with sufficient pauses to allow for a further bid. Once the property was knocked down at $80,000, it was entirely appropriate for the Deputy Sheriff to

22 Page 20 refuse to reopen the bidding. In my view she did not have the discretion to reopen the bidding in these circumstances. [52] Although the bank s solicitor had authorization to bid up to $215,000, she did not do so, apparently believing hers was the highest bid. The amount of $80,000 is, of course, substantially less than the authorized bid and less than the appraisal amount of $205,000 (based on the appraisal the bank had commissioned prior to the sale). However, that is not in itself a reason to set aside the sale. It is important to uphold the integrity of the sale process in the absence of special circumstances. [53] Under the circumstances, the Deputy Sheriff sold the property to the highest bidder. In hindsight, it is clear it was not the best price possible, but the Deputy Sheriff had no way of knowing, as the sale was occurring, what the maximum might be for any bidder, let alone what instructions the bank s solicitor had. There was no reason for her to speculate about the amount of bids to be made. When the bids reached $80,000 and there was no further bidding, she knocked the property down at that price. [54] Ms. Russell said in para. 11 of her affidavit that, The bidding process was carried out very rapidly, within two to three minutes. In para. 21 she said, The

23 Page 21 whole process took no more than 3 to 4 minutes from open to close. In his affidavit, Mr. Simms refers to the bidding continuing in $5,000 increments until it reached $80,000. He said thereafter there were pauses by the Deputy Sheriff as she said Going once at $80,000, Going twice at $80,000 and Going a third time at $80,000. He estimated the total time of the pauses to be a maximum of 50 seconds. Ms. Hue did not estimate the time, but referred to the pauses after the $80,000 bid was made. She said the bidding was not rushed. [55] After the opening minimum bid of $9, the bidding proceeded, according to everyone, in $5,000 increments, meaning there were only 14 bids after the opening bid. In my view, it would not take long for those 14 bids to be made but that does not mean the bidding was rushed. This is especially so since both Ms. Hue and Ms. Russell knew their bidding limit and would not have had to take time to consider whether to keep bidding until that limit was reached. Although an estimate of three to four minutes total for the entire process, if accurate, seems at first blush to be very quick, I cannot conclude that there is any evidence that it affected the validity of the process. [56] I have concluded that the Deputy Sheriff did not announce the name of the highest bidder before saying going once, going twice, going a third time. The Bank says in its written submissions that the Sheriff must ensure there is no

24 Page 22 confusion among the bidders about who has the highest bid before the property is knocked down. In my view, not doing so is not a flaw in the process. It is not required. There is nothing in the Civil Procedure Rules, the Court Order, the Practice Memorandum or the Sheriff s policies to this effect, and there was no evidence that this is the practice. For someone paying attention or keeping track of the bidding, it should be clear who has placed a bid. [57] In this case, there were only three bidders; Mr. Simms and Ms. Hue said they had no trouble keeping track of the bidding and knowing who had made a bid. Ms. Hue had set a predetermined limit of $80,000 and bid $75,000. She said when Mr. Simms made a bid of $80,000, she signalled she would bid no more. The last two bids were those of Ms. Hue and Mr. Simms, according to their affidavits, and Ms. Russell was in error believing she had bid $80,000. There is a responsibility on those bidding, who have an interest in being the successful bidder, to keep track of the bids. If through inadvertence or inattention that does not happen, it is not the responsibility of the Deputy Sheriff to correct an error or assume there was one, before knocking the property down to the highest bidder. [58] Although I have the discretion to set aside a foreclosure sale, I conclude the Bank has not satisfied me there are special circumstances here to necessitate setting this sale aside. The price was not so low as to shock the conscience of the

25 Page 23 court and there is no evidence that I should use to draw an inference that the price was obtained by fraud or unfairness. The integrity of the sale process and its ability to be relied upon by successful bidders is important. There was nothing in the Deputy Sheriff s conduct of the sale which breached her obligations with respect to the conduct of the sale. Any mistake was not that of the Deputy Sheriff conducting the sale. [59] The motion is dismissed. Hood, J.